McNulty v. Southern Pac. Co., 14149

• Decision Date: 07 April 1950
• Docket Number: No. 14149,14149
• Citation: 96 Cal.App.2d 841,216 P.2d 534
• Parties: McNULTY v. SOUTHERN PAC. CO. et al.
• Court: California Court of Appeals Court of Appeals

Page 534

216 P.2d 534

96 Cal.App.2d 841

McNULTY v. SOUTHERN PAC. CO. et al.

No. 14149.

District Court of Appeal, First District, Division 2, California.

April 7, 1950.

As Modified on Denial of Rehearing May 6, 1950.

Hearing Denied June 1, 1950.

A. B. Dunne, Dunne & Dunne, San Francisco, for appellants.

Appeal, Dains & Liebermann, San Francisco, for respondents.

GOODELL, Justice.

This appeal was taken from a judgment entered on a verdict for $100,000 in an action for personal injuries. A motion for new trial was denied.

The plaintiff, a commuter living at Millbrae, was a fare-paying passenger aboard train 106 which left the Third and Townsend depot in San Francisco about 12:31 a. m. on January 17, 1947. The train consisted of the locomotive and tender pulling six cars, the first three being 'deadheads' or empties, the next two being passenger coaches then in use as such and lighted, and the last car being a 'deadhead', unlighted, passenger coach. On that trip Millbrae, plaintiff's destination, was a flag-stop, and before leaving San Francisco the conductor gave the engineer an order to stop there. The stop was admittedly momentary, and shortly after the train pulled out plaintiff was found lying on the Millbrae station platform near the southbound track, with his right leg, severed below the knee, lying on the roadbed between the rails of the southbound track, and his left leg badly mangled but not severed. Blood was on the rails about six feet north of the place where he was found. The freight train crew which made the discovery immediately notified police authorities who arrived promptly, gave first aid, and sent for an ambulance. The police chief marked the spot where plaintiff lay, and later made a measurement which became a fixed and determined factor in the case.

None of the five members of the crew of train 106 (engineer, fireman, conductor, and two brakemen) saw plaintiff leave the train, or saw the accident, or knew it had happened until they reached San Jose. Another Millbrae passenger, who was a witness for plaintiff, knew nothing of the accident until he read of it that evening in the paper. All these facts are without contradiction.

The real issue of fact in this case was as to the manner in which the plaintiff left the train.

Plaintiff testified that he had occupied a seat near the rear of the second lighted coach (the fifth car in the train and the one just ahead of the 'deadhead', unlighted coach) and that as the train slowed down for the Millbrae stop he went to the rear platform of his car and thereafter started to descend the four steps leading therefrom. As he did so he took hold with his right hand of the grab-iron on his right and when the train came to a stop and he reached the lowest step and was about to step with his right foot onto the station platform, the train started up with a 'pronounced' jerk which threw him around, disengaged his hold and threw him down between his car and the last car and under the wheels thereof.

The chief of police of Millbrae testified that plaintiff was lying disabled on the station platform near the track at a point about 175 feet (a little over two car lengths) northerly from the northerly line of Millbrae Avenue. The five members of the train crew and two other trainmen (who were sidetracked at the station) testified as to the place where the train stopped. There were differences between their estimates, but it may be fairly said that the testimony on appellants' side was that the rear end of the train stopped at about Millbrae Avenue. That Avenue crosses the right of way at approximately a right angle, a short distance north of the Millbrae stationhouse.

In his opening statement appellants' counsel told the court and jury '* * * we expect to show you that measuring back, knowing the consist [railroad parlance for the make-up and type of cars] of the train, from the point of this stop * * * that the rear end of that train would have been some place near Millbrae Avenue. And we expect to show you from that that if Mr. McNulty was injured at a point 160 to 175 to 181 feet north of the Millbrae [Avenue] crossing, he could have been injured in only one way, and that is by attempting to get off that train while it was in motion and before it had come to a stop.'

This was a frank and definite statement of appellants' position and theory. Respondent contended, on the other hand, that the train necessarily must have stopped with its rear end near the place where he was found helpless and in shock. The difference, in feet, between the two points, was somewhere around 160, 175, or 181, and this wide disparity presented a broad factual question for the jury. Its verdict implies a finding that the stop was nowhere nearly as far south as any of appellants' witnesses placed it.

Appellants' first contention is that the verdict was excessive and the result of caprice.

Appellants' brief opens with the statement that 'the overshadowing consideration in the case is the amount of the verdict.'

At the outset it should be remarked that 'Upon appeal, the decision of the trial court and jury on the subject cannot be set aside unless the verdict is 'so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury''. Hale v. San Bernardino, etc. Co., 156 Cal. 713, 715, 106 P. 83, 84, citing cases; followed in Hicks v. Ocean Shore R. R., Inc., 18 Cal.2d 773, 785, 117 P.2d 850. This test, it must be admitted, imposes an extremely heavy burden on an appellant claiming excessive damages.

Respondent's right leg was cut off by the wheels of the train, and he testified that at the time, as he lay helpless on his back, he knew this. It was found on the roadbed between the rails. His left leg was badly mangled but not severed, and at the hospital it had to be amputated three inches below the knee. In the same operation the amputation of the right leg was completed three inches above the knee.

Plaintiff was 42 years old at the time of the accident, and 43 at the time of trial, with an expectancy of 26 years. His health had been good; he had played golf and some baseball, had done some fishing, and some walking and gardening. He had been with the American Trust Company in San Francisco for over 25 years, since 1921, and held a responsible position as assistant cashier with that banking institution at a monthly salary of $365.

Shortly before the accident he had taken a special training course in the bank to qualify him for a position in one of its suburban branches, which course embraced instruction respecting real estate transactions and practices. In fact on the evening before the accident he had been at a dinner attended by banking and real estate men in connection with this new branch of his activity with the bank.

At the time of the trial he was in the bank's branch at San Bruno.

Respondent's confinement in the hospital after his operations was apparently for a minimum period. His injuries seemed to heal quickly and satisfactorily. On returning to his home he spent some time in bed and was then up and around the house. The train accident gave him a head injury but that seemed to have cleared up without complications or serious difficulties. He suffered from phantom distress and pains common to amputation cases, at times acute, severe and sharp, 'like a toothache'. He had some difficulty adjusting himself to his two artificial limbs, and in learning to walk and get around with them; he had difficulty in getting up and down steps and inclines.

All in all, respondent's recovery up to the time of trial had been about as satisfactory as could be heped for, considering the severe injuries he had received and the shock to his system which such serious injuries entailed.

In cases where damages are claimed to be excessive an appellant often points to places in the record where the conduct of the plaintiff, or his counsel, or both, in the presence of the jury has been designed to inflame and excite them and arouse the 'passion and prejudice' which form the basis of an excessive verdict. This record shows no such conduct, and it is not claimed by appellants that it does. In the courtroom the respondent did not even exhibit the stumps of his legs. There was nothing in his demeanor or conduct, or in that of his counsel, which indicated the slightest attempt to exaggerate or magnify his injuries or suffering. His testimony on that score and otherwise was notably temperate, moderate and dispassionate.

Respondent could prove no loss of earnings since his employer paid him his full salary regularly throughout the eight and a half months of his absence from the bank.

As he adjusted himself to his artificial limbs and could get around, he started back to work for one day a week, then two, and at the time of trial had returned practically to a full week at his desk. His wife drives him to and from his place of business at San Bruno.

His special damages were $2,925.43.

Appellants point to some of the circumstances which fortunately attend this particular case, outlined above, as an argument why such a large verdict is not justified.

The fact remains that respondent, in the very prime of life, must carry on for the remainder of it with this serious handicap. While it is true that his employer took care of him throughout his hospitalization and recuperation with full pay, there is no assurance, in the nature of things, that respondent can continue to hold his present position, or one anywhere nearly as good, with the physical handicap that is his, seriously impairing his ability to get around as an able bodied man can. As the manager or assistant manager of a branch bank in a community where it is necessary to visit, inspect and appraise property of all kinds and situated in all kinds of places, it is a certainty that respondent will not have the freedom of movement of the ordinary person holding such...